A Study On Hearing System For Civil Execution

The work of civil execution has always been the most controversial and mostirregular part in the running of People’s Courts. Facing the dilemma of being difficultto carry out, both the theoretical and practical circles have carried out explorationsand practices of civil execution. The hearing system for civil execution is one of theachievements of such explorations and practices.Since the author was engaged in the execution work, the prominent problems inexecution were focused on. Since the provisions of law enforcement are not detailedand the quality of the executives is not qualified, the work of civil execution isgenerally not open, transparent or specified. Among the petition and appeal casessettled by the author, the expectation on implementation of justice from the public isbeyond the concern of performance efficiency from the perspective of the party. Theimplementation of justice has become the focus issue between the court and themasses. The system for executive hearing is set up to assure the justice of executionprocedure. However, in practical work of executive hearing, a number of courts havebecome formalistic. And then it evolves into the situation that the courts negativelydeal with the legitimate demands of the parties which finally leads to the loss of theessence of executive hearing. Since it’s difficult to carry out the entire case in practice,the justice of the procedure to the parties becomes significant to convince them of thework of the courts. Conversely, the unjust procedure would lead to an enormousdamage to the authority and credibility of the courts. At present, the theorists have notcarried out thorough discussion and research about the system of executive hearing.What’s more, it is lack of a systematic study specific to the system of executivehearing. In most cases, the hearing system is included in the discussion of theexecution procedure and also made as a part of the procedure to explore. It is thoughtthat there are good theoretical foundation and operating environment for the hearingof civil execution in China, and also, the hearing system for civil execution is doableand in accordance with system with good operability. Therefore, the hearing systemfor civil execution has practical significance. The methods of laws interpretation and comparative study are used in this paperand the thesis is divided into three parts:In part I, it sets forth the general theory on civil execution hearing system.Hearing system is an activity concerning the facts in which hearing the statement,evidence, interrogation and defend of all parties of the execution case hosted by theexecutive judge in the form of hearing in order to verify the executive capacity anddissent action of execution of the person subjected to execution and implement therights and duties regulated in effective legal documents. Executive hearing is thecensorship in execution, which mainly focuses on procedural review while attachesless importance to content entity. It is reusable and efficient. Besides, it has thefunctions of maintaining justice of the execution, improving efficiency of theexecution, preventing corruptions of the execution and relieving contradictions of theexecution. Executive hearing follows the principles of being open, efficient withjustice, moderate initiative, functional separated, equal and well-ordered.In part II, it discusses the current situation of executive hearing system and thenecessity of improvement based on actual situation. There are no stipulations onexecutive hearing in law and judicial interpretation in China, as for the CivilProcedural Law, there are only some provisions on the filing of dissent action ofexecution without detailed regulations. The12tharticle of Provisions on Publicizingthe Execution Work of People’s Court issued by the Supreme People’s Court stipulatesthat it should hold a public hearing when executing an important event. As present,local people’s courts at different levels hold executive hearing based on theor ownprovisions, which leads to the lack of legitimacy and definiteness. The establishmentof executive hearing system should meet the practical demands and the requirementsof compulsory execution and value pursuit. It is also the request for justice executionand judicial reform.In part III, the structure of the hearing system for civil execution is discussed.Referring to the stipulations of executive hearing and extraterritorial hearing systemof various places,8cases of execution should be contained in executive hearing.They are: the person not involved in the case putting forward the objections toexecution, the parties and interested parties putting forward the objections to execution, multiple creditors participating in the distribution, the alteration or additionof the parties, the disallowed execution of the notary creditor’s rights writ in arbitralawards, the suspend and termination of execution, the complicated cases, etc.. Themain parts of the hearing include the hearing organization, hearing participants andhearing host. Executive hearing can stipulate the start, operation, supervision andrelief of hearing.It is hoped that this paper can provide beneficial reference for the future researchand regulate the execution work and promote the development of an equal andstrongly operational hearing system that can be used nationwide.